C A L I F O R N I A L A W R E V I S I O N C O M M I S S I O N S T A F F M E M O R A N D U M

Study J-1300 May 27, 1998

Memorandum 98-33

Trial Court Unification: Judicial Elections

In response to a Judicial Council request for comments, Judge Alan

Rosenfield (Presiding Judge, Newhall Municipal Court) raised a concern

regarding the timing of judicial elections where an appointed municipal court

judge becomes a superior court judge through unification. The Judicial Council

referred this matter to the Commission. Understanding and analyzing Judge

Rosenfield’s suggestion requires familiarity with the existing rules governing the

timing of municipal and superior court elections.

EXISTING SYSTEM FOR MUNICIPAL AND SUPERIOR COURT ELECTIONS

Judicial elections are nonpartisan. Cal. Const. art. II, § 6(a). Consequently, the

primary election is often decisive. If a judicial candidate receives a majority of the

vote at the primary, the candidate is elected and no general election is necessary.

Elec. Code § 8140.

Timing of Superior Court Elections

The timing of superior court elections is governed by Article VI, Section 16(b)

and (c) of the state Constitution:

(b) Judges of other courts [i.e., courts other than the SupremeCourt and the courts of appeal] shall be elected in their counties ordistricts at general elections. The Legislature may provide that anunopposed incumbent’s name not appear on the ballot.

(c) Terms of judges of superior courts are 6 years beginning theMonday after January 1 following their election. A vacancy shall befilled by election to a full term at the next general election after theJanuary 1 following the vacancy, but the Governor shall appoint aperson to fill the vacancy temporarily until the elected judge’s termbegins.

SCA 4 would amend Section 16(b) and (c) as follows:

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(b) Judges of other (1) In counties in which there is no municipalcourt, judges of superior courts shall be elected in their counties atgeneral elections except as otherwise necessary to meet therequirements of federal law. In the latter case the Legislature, bytwo-thirds vote of the membership of each house thereof, with theadvice of judges within the affected court, may provide for theirelection by the system prescribed by subdivision (d), or by anyother arrangement. The Legislature may provide that anunopposed incumbent’s name not appear on the ballot.

(2) In counties in which there is one or more municipal courtdistricts, judges of superior and municipal courts shall be elected intheir counties or districts at general elections. The Legislature mayprovide that an unopposed incumbent’s name not appear on theballot.

(c) Terms of judges of superior courts are 6 years beginning theMonday after January 1 following their election. A vacancy shall befilled by election to a full term at the next general election after thesecond January 1 following the vacancy, but the Governor shallappoint a person to fill the vacancy temporarily until the electedjudge’s term begins.

Timing of Municipal Court Elections

The timing of municipal court elections is governed by statute, not by the

Constitution. There are three key provisions:

Gov’t Code § 71141. Municipal judge elections71141. Judges of the municipal court and justice court shall be

elected at the general state election next preceding the expiration ofthe term for which the incumbent has been elected.

Gov’t Code § 71145. Municipal judge term71145. The term of office of judges of municipal and justice

courts is six years from and including the first Monday of Januaryafter the January 1st next succeeding their election. Judges shallhold office until their successors are elected and qualify, but theoffice shall be deemed to be vacant upon the expiration of the fixedterm for the purpose of selecting a successor.

Gov’t Code § 71180. Municipal court vacancy71180. (a) Any vacancy in the office of judge of a municipal

court shall be filled by appointment by the Governor, but novacancy shall be deemed to exist in any office before the time fixedin Sections 71080, 71082, and 71083 for the selection of the judges ofthat court and the time fixed by law for their qualification. Theappointee shall hold office for the remainder of the unexpired term

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of his or her predecessor and until his or her successor is electedand qualifies.

If the office to which any person so appointed was notpreviously occupied, he or she shall hold office until his or hersuccessor is elected at the general state election next succeeding theoccurrence of the vacancy and qualifies. No successor to theappointee shall be elected at any election held within 10 months ofthe date of the occurrence of the vacancy.

(b) If a vacancy in the office of judge of a municipal court occursbetween the last day candidacy declaration papers may be filed andthe June direct primary election and that vacancy occurs because ofthe appointment of the incumbent judge to another office by theGovernor, or because the incumbent has resigned, retired, died, orbeen removed from office in accordance with subdivision (b) or (c)of Section 18 of Article VI of the California Constitution, and if oneor more qualified persons other than the incumbent have filedcandidacy declaration papers for the office, no vacancy shall bedeemed to exist for purposes of subdivision (a), and the election forthe office of judge shall be postponed until the next Novemberstatewide election.

If the Governor appoints the incumbent judge to another officewithin 68 days of the June direct primary election, and, as a result,the elections officer does not have sufficient time to remove thecandidates' names from the ballot, the June direct primary electionfor the office shall not be deemed to have been held. At the nextNovember statewide election, the candidate who receives the mostvotes shall be elected.

In order for a person's name to appear on the ballot at the nextNovember statewide election the person shall file nominationdocuments in accordance with Article 2 (commencing with Section8020) of Chapter 1 of Part 1 of Division 8 of the Elections Code. Nopreviously filed documents shall satisfy this subdivision. Qualifiedpersons who did not file nomination documents for the June directprimary election, as well as qualified persons who filed nominationdocuments for the June direct primary election, shall be permittedto file nomination documents for the November statewide election.

Persons who had previously paid the filing fee at the time offiling nomination documents for the June direct primary electionshall not be required to pay a filing fee for the November statewideelection.

Comparison of Superior Court and Municipal Court Elections

“What sense there is in an entirely separate scheme for the timing of elections

to the two trial courts is not apparent.” R. Grace, Timing in Judicial Elections,

Part 1: The Superior Court, Metropolitan News (Tues., Feb. 3, 1998). “In

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interpreting the various election provisions, there is a marked tendency on the

part of courts to show how creative they can be.” Id.

A chart summarizing the basics of the two election schemes is attached.

(Exhibit pp. 1-3.) This chart does not cover every possible situation. Key

differences between the two schemes include:

• A municipal court appointee holds office “for the remainder of the

unexpired term of his or her predecessor and until his or her successor is elected

and qualifies.” Gov’t Code § 71180(a). A superior court appointee does not serve

out the remainder of the predecessor’s six-year term, but instead is up for

election at the “next general election after the January 1 following the vacancy.”

Cal. Const. art. VI, § 16(c); see also Cal. Const. art. VI, § 16(c) (as amended by SCA

4) (“after the second January 1 following the vacancy”).

• The so-called “ten-month rule” applies to a municipal court appointee:

“No successor to the appointee shall be elected at any election held within 10

months of the date of the occurrence of the vacancy.” Gov’t Code § 71180(a); see

also Donnellan v. Hite, 139 Cal. App. 2d 43, 293 P.2d 158 (1956); Campbell v. Hite,

57 Cal. 2d 484, 369 P.2d 944, 20 Cal. Rptr. 328 (1962); Brailsford v. Blue, 57 Cal. 2d

335, 369 P.2d 13, 19 Cal. Rptr. 485 (1962). This rule does not apply to a superior

court appointee.

JUDGE ROSENFIELD’S SUGGESTION

SCA 4 includes a transitional provision (proposed Cal. Const. art. VI, § 23),

which provides in part:

When the superior and municipal courts within a county areunified, the judgeships in each municipal court in that county areabolished and the previously selected municipal court judges shallbecome judges of the superior court in that county. The term ofoffice of a previously selected municipal court judge is not affectedby taking office as a judge of the superior court.

Proposed Government Code Section 70211 would reiterate much of this

constitutional language, making it readily accessible:

70211. When the municipal and superior courts in a county areunified:

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(a) The judgeships in each municipal court in that county areabolished and the previously selected municipal court judgesbecome judges of the superior court in that county. Until revised bystatute, the total number of judgeships in the unified superior courtshall equal the previously authorized number of judgeships in themunicipal court and superior court combined.

(b) The term of office of a previously selected municipal courtjudge is not affected by taking office as a judge of the superiorcourt.

(c) The 10-year membership or service requirement of Section 15of Article VI of the California Constitution does not apply to apreviously selected municipal court judge.

Comment. Section 70211 restates the first three sentences ofConstitution Article VI, Section 23(b), with the addition insubdivision (a) of a provision maintaining the total number ofjudgeships in the county. The Legislature prescribes the number ofjudges. Cal. Const. art. VI, §§ 4, 5.

The references in this section to a “previously selected” judgeincludes selection by election or by appointment to fill a vacancy.Cf. Trial Court Unification: Constitutional Revision (SCA 3), 24 Cal. L.Revision Comm’n Reports 1, 82 (1994) (Article VI, § 23(b)Comment).

Judge Rosenfield would add a second sentence to Section 70211(b), to clarify

how unification affects a municipal court judge appointed by the governor:

“Municipal court judges holding office following gubernatorial appointment

shall first stand election as provided in Government Code Section 71180.”

(Exhibit pp. 10-11.) He explains:

The added language is necessary because the time frame forelection of municipal court judges varies depending upon the timeof the vacancy giving rise to the appointment (i.e., the 10 monthrule). Without the added language, an ambiguity arises betweenthe existing language of the subparagraph and the new language inSCA 4 amending Cal. Const., Section 16, Art. 6, to provide for thefilling of vacancies at an election after the SECOND January 1following the vacancy (for SUPERIOR court judges).

MC judges at the time of conversion become judges of thesuperior court, but their current term is “unaffected.” Thedefinition of that term is possibly governed by G.C. 71180, in termsof defining the date for the first election following appointment.Such date may vary under municipal court law depending uponthe date of the vacancy filled by the appointment.

(Exhibit p. 11.)

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Judge Rosenfield essentially asks whether Government Code Section 71180

governs the time for holding an election where a municipal court appointee

becomes a superior court judge through unification. The answer hinges on the

constitutional mandate that the “term of office of a previously selected municipal

court judge is not affected by taking office as a judge of the superior court.” Cal.

Const. art. VI, § 23(b) (as amended by SCA 4).

RELATED ISSUE: UNIFICATION DURING A MUNICIPAL COURT ELECTION

Judge Rosenfield’s question led the staff to consider an important related

point: The interrelationship between unification and an ongoing municipal court

election. Suppose, for instance, that a municipal court primary occurs, a runoff is

necessary, but the court unifies before the runoff is held. What happens?

Similarly, suppose that several persons have declared candidacy for a municipal

court primary, but unification occurs before the primary is conducted. Again,

what happens? Providing clarification on these points is a matter of some

urgency, because 1998 is an election year and many courts are planning to unify

soon after a favorable vote on SCA 4.

ANALYSIS

The staff’s analysis of these issues, focusing on the constitutional mandate

that the “term of office of a previously selected municipal court judge is not

affected by taking office as a judge of the superior court,” is presented below. The

Commission’s consultant, Professor J. Clark Kelso, has also prepared an analysis,

which is attached. (Exhibit pp.12-16.)

Application to Appointees

This constitutional provision clearly applies to appointees, as well as elected

municipal court judges. The Commission’s report on SCA 3 (the predecessor of

SCA 4) includes the same language, with the following Comment:

Subdivision (b) makes clear that existing municipal … courtjudgeships are not continued after unification. New superior courtjudgeships are created, and this section ensures the continuation inoffice of existing municipal … court judges in the unified trial courtfor the duration of their former terms, regardless whether theirselection was by appointment or election.

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(Emphasis added.) The Commission deliberately used the word “selected” in

Section 23(b), because “selected” had previously been interpreted to encompass

both elected and appointed judges. See Lungren v. Davis, 234 Cal. App. 3d 806,

822, 285 Cal. Rptr. 777 (1991).

Section 23(b) thus mandates that the “term of office” of a previously elected or

appointed municipal court judge “is not affected by taking office as a judge of the

superior court.” But what does this mean?

Interpretations of “Term of Office”

An obvious interpretation is that unification does not affect how long a

former municipal court judge holds office; the judge will be up for election at the

same time as if unification had not occurred. “Term of office” essentially means

“tenure in office.” This interpretation preserves existing expectations of the

judge, the electorate, and potential judicial candidates.

It is possible, however, to interpret “term of office” to refer to the six-year

term for which the judge (or the judge’s elected predecessor, in the case of an

appointee) was elected. This may differ from the judge’s tenure in office, because

the judge may leave office before the end of the term. The six-year term may also

differ from the judge’s tenure in office, because the judge holds office until a

successor is elected and qualifies (Gov’t Code §§ 71145, 71180), which occurs only

when the successor is sworn in at the start of the successor’s term (Gov’t Code §§

1360, 71144). Where, for instance, a municipal court vacancy occurs less than ten

months before the next general state election, an appointee to that vacancy need

not stand election until the following general state election. Gov’t Code § 71180.

The appointee holds office until a successor is elected and qualifies, even if the

six-year term of the appointee’s elected predecessor expires earlier. Campbell v.

Hite, 57 Cal. 2d 484, 369 P.2d 944, 20 Cal. Rptr. 328 (1962).

Which interpretation of “term of office” is correct? Both case law and

constitutionally embedded policy considerations must be examined.

Case Law

The “six-year term” interpretation of “term of office” arguably draws support

from Lungren v. Davis, 234 Cal. App. 3d 806, 285 Cal. Rptr. 777 (1991), in which a

superior court appointee was elected, but resigned before his elective term began

so that he could become chief deputy attorney general. The issue was whether

the appointee was eligible to be chief deputy attorney general, in light of a

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constitutional provision (Cal. Const. art. VI, § 17) making a judge ineligible for

nonjudicial public employment or office during the judge’s “term.” The Court of

Appeal determined that he was eligible.

In reaching that result, the court concluded that a superior court appointee

does not serve a “term” within the meaning of Section 16 of Article VI. Id. at 820-

26. The “very fact that an appointee does not have a fixed and definite time at

which his right to hold office, and the accompanying disabilities, will terminate

precludes considering him to have a ‘term’ of office within the general meaning

of the word.” Id. at 824. “Term” refers only to the six-year term of an elected

superior court judge in Section 16; “term” means the same thing in Section 17. Id.

at 820-25. Consequently, a superior court appointee is “not ineligible for public

office or employment beyond the period of his actual service. Id. at 822.

From Lungren one could argue that “term of office” in Article VI, Section 23(b)

refers to a judge’s fixed term, just as in Article VI, Sections 16 and 17. “There can

be no question … that words and phrases within article VI of the Constitution

must be interpreted in the light of other provisions of that article.” Id. at 823.

But Lungren also says that “[t]he word ‘term’ must be interpreted to effectuate

the statutory scheme pertaining to the particular office under examination.” Id. at

815. The Court of Appeal carefully distinguished a superior court “term” from

the “term” of other judicial offices. Id. at 818-19, 822.

In Campbell v. Hite, 57 Cal. 2d 484, 487-88, 369 P.2d 13, 20 Cal. Rptr. 328

(1962), the Supreme Court specifically considered the tenure of five municipal

court appointees who sought to run for election in 1962. The Court determined

that the appointees were not up for election that year, because the vacancies to

which they were appointed occurred less than ten months before the 1962

primary. Id. Dismissing the notion that Government Code Section 71145 creates

an exception to the ten month rule, the Court stated: “[T]he term of office of each

of the petitioners is for the term of his predecessor and until his successor is

elected and qualifies.” Id. at 488 (emphasis in original). The Court thus equated

the “term of office” of the appointees with their statutorily prescribed tenure in

office pursuant to Government Code Section 71180 (“The appointee shall hold

office for the remainder of the unexpired term of his or her predecessor and until

his or her successor is elected and qualifies”).

The Legislature is presumed to have been aware of this judicial interpretation

in drafting SCA 4, suggesting that “term of office” should also be interpreted to

mean “tenure in office” in proposed Article VI, Section 23(b). See, e.g., Walters v.

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Weed, 45 Cal. 3d 1, 10, 11, 752 P.2d 443, 246 Cal. Rptr. 5 (1988); People v. Woods,

12 Cal. App. 4th 1139, 15 Cal. Rptr. 2d 906 (1993). The strength of this inference

depends on whether the Court’s reference to “term of office,” rather than “tenure

in office” is regarded as essential to its decision. Harris v. Capital Growth

Investors XIV, 52 Cal. 2d 1142, 1155-56, 805 P.2d 873, 278 Cal. Rptr. 614 (1991).

A third case, Caldwell v. Bruning, 64 Cal. 2d 111, 114, 410 P.2d 353, 48 Cal.

Rptr. 849 (1966), suggests still a third possibility. Caldwell involved an appointee

who replaced a municipal court judge who was reelected but left office before his

new term began. The Court determined that the appointee’s “term of office”

included the term for which his predecessor had been elected, even though his

predecessor never took office. The Court explained that the “term of office” of

municipal court judges “is unrelated to the tenure of the person elected.” Id. at

119. It necessarily follows that “term of office” is not synonymous with “tenure

in office” for an elected municipal court judge.

With regard to appointees, however, Caldwell reiterates the quoted language

from Campbell (“the term of office of each of the petitioners is for the term of his

predecessor and until his successor is elected and qualifies”). Caldwell thus

reinforces the view that a municipal court appointee’s “term of office” is the

same as the appointee’s “tenure in office.” Under Caldwell, then, “term of office”

seems to mean one thing for elected municipal court judges (“six-year term”) and

another for municipal court appointees (“tenure in office” — i.e., the remainder

of the elected predecessor’s term and until a successor is elected and qualifies).

Thus, the case law does not provide a definitive answer in interpreting Article

VI, Section 23(b): “Term of office” could mean “six-year term,” it could mean

“tenure in office,” or it could even mean “term of office” for appointees and “six-

year term” for elected judges. Campbell and Caldwell are Supreme Court decisions

concerning municipal court judges, but they do not construe constitutional

language. Lungren interprets Article VI of the Constitution, but in reference to

superior court judges. There is as yet no case law interpreting proposed Article

VI, Section 23. Cases construing other provisions are of limited relevance,

because “the meaning of the words ‘term of office’ is not governed by any

uniform rule but must be determined by reference to the other portions of the

statutes in which they are found.” Caldwell, 64 Cal. 2d at 117.

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Constitutionally Embedded Policy Considerations

Although the case law does not provide a clear answer, constitutionally

embedded policy considerations do.

The constitutionally stated purpose of the SCA 4 amendments is to permit the

Legislature to provide for abolition of the municipal courts and unification of

their operations within the superior courts. Cal. Const. art. VI, § 23(a) (as

amended by SCA 4). To this end, SCA 4 gives the Legislature broad authority to

effect an “orderly transition.” Id.

If “term of office” in Article VI, Section 23(b) is interpreted to mean that a

previously selected municipal court judge’s tenure in office is unaffected by

unification, existing expectations concerning the timing of the election would be

preserved and the date of the election would be determined pursuant to well-

established, previously litigated, rules. Application of the rules would be

straightforward. (Exhibit pp. 3-8 (Scenarios 1-5).) Barring unusual circumstances

(such as election of a replacement who resigns before qualifying), the former

municipal court judge would serve no more than about six years before he or she

could be replaced. (Exhibit pp. 3-8 (Scenarios 1-5).) Even where an appointment

occurs near the end of the judge’s term, the gap between elections would be no

more than eight years, which is no different than what happens under existing

law when an elected superior court judge resigns early in the last year of the

term. (Exhibit pp. 5 (Scenario 2), 7 (Scenario 4).) This would promote an “orderly

transition.”

In contrast, if “term of office” in Article VI, Section 23(b) is interpreted to

mean that a previously selected municipal court judge is entitled to serve out the

remainder of the judge’s (or the judge’s elected predecessor’s) six-year term,

many questions arise. (Exhibit pp. 3-9 (Scenarios 1-5).) What happens where a

municipal court appointee has already served the remainder of his or her elected

predecessor’s six-year term before unification occurs? Where the six-year term

has not expired before unification, is the term preserved only if it is served by the

“previously selected municipal court judge,” or also if an appointee replaces a

“previously selected municipal court judge”? (Exhibit pp. 5-6 (Scenario 2), 8-9

(Scenario 5).) Where the six-year term has not expired before unification, what

rule should be used to determine the date of the next election?

For example, consider an elected municipal court judge, elevated through

unification, who serves to the end of the term. (Exhibit pp. 3-5 (Scenario 1).) Does

the rule for an elected superior court judge apply, such that the judge is up for

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election at the general election preceding expiration of the term? Since the judge

has never been elected to the superior court, and no judge has ever been elected

to the new judgeship, is it more appropriate to apply the rule for a newly created

superior court judgeship? If so, then the judgeship would be considered vacant

(presumably upon expiration of the six-year term) and the rule for filling a

superior court vacancy would apply: A successor would be selected at the “next

general election after the second January 1 following the vacancy.” Cal. Const.

art. VI, § 16(c) (as amended by SCA 4). In the interim, is the Governor entitled to

fill the vacancy with someone other than the previously selected municipal court

judge? Under this scenario, there would almost certainly be challenges by the

previous municipal court judges (and possibly also by criminal defendants or

other litigants), disrupting the transition to unification.

Another possibility is that the judgeship is considered vacant, but the vacancy

is to be filled by the previously selected municipal court judge until a successor is

elected and qualifies at “the next general election after the second January 1

following the vacancy.” Id. Even without unusual circumstances, for some

elected municipal court judges this would mean that there would be

approximately ten years between when they take office and when they can be

replaced. (Exhibit pp. 3-5 (Scenario 1).) The same result could occur with respect

to a municipal court appointee. (Exhibit pp. 5-6 (Scenario 2), 7 (Scenario 3); see

also pp. 7-8 (Scenario 4) (ten year gap between elections), 8-9 (Scenario 5) (same).)

This lengthy interval without an election would “be contrary to the intent of

the constitutional provision that a superior court term be six years, a provision

which contemplates that an opportunity to pass on the qualifications of superior

court judges will be available to the electorate no less often than every six years.”

Pollack v. Hamm, 3 Cal. 3d 264, 273, 475 P.2d 213, 90 Cal. Rptr. 181 (1970); see also

Stanton v. Panish, 28 Cal. 3d 107, 112, 615 P.2d 1372, 167 Cal. Rptr. 584 (1980).

The right of suffrage, protected by Article II of the state Constitution, is a

fundamental right preservative of other basic civil and political rights. Stanton, 28

Cal. 3d at 115. Every reasonable presumption and interpretation should be

indulged in favor of the right of the people to exercise the elective process. Id.

Here, that means interpreting Article VI, Section 23(b) such that a municipal

court judge elevated through unification is up for election at the same time as if

unification had not occurred.

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Summary

The constitutional mandate that the “term of office of a previously selected

municipal court judge is not affected by taking office as a judge of the superior

court” (Cal. Const. art. VI, § 23(b) (as amended by SCA 4)) should be interpreted

to mean that the tenure of a previously elected or appointed municipal court

judge is unaffected by unification. In other words, existing law governing the

timing of municipal court elections applies in determining when that judge (not

an appointee replacing that judge) is next up for election:

• This is the obvious, commonsense interpretation that preserves existing

expectations (not a technical construction).

• It is most consistent with the constitutional principle that “an

opportunity to pass on the qualifications of superior court judges will be

available to the electorate no less often than every six years.” Pollack, 3 Cal. 3d at

273; see also Stanton, 28 Cal. 3d at 112.

• It should be easy to implement and would help facilitate an “orderly

transition” to a unified superior court, as constitutionally mandated. The well-

established rules governing the timing of a municipal court election would

simply apply one more time after unification, to determine when a “previously

selected municipal court judge” is up for election. It would not be necessary to

use a hybrid election system on a transitional basis (combining the six-year term

of the “previously selected municipal court judge” with the rules governing

superior court elections).

RECOMMENDATION

Professor Kelso reaches the same conclusion as the staff concerning the

proper interpretation of Article VI, Section 23(b). (Exhibit pp. 12-16.) He believes

that “it is unnecessary and unproductive to draft any further implementing

legislation which attempts to define more precisely what ‘term of office’ means in

Section 23(b).” (Exhibit p. 16.) He explains:

It is an issue that can easily be resolved by the courts withoutfurther assistance, and probably will be resolved as indicatedabove. Moreover, the issue will almost certainly be the subject oflitigation even if the Legislature enacts a more precise or differentdefinition; therefore, attempting to be more precise with

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implementing legislation will not significantly clarify matters andwill not avoid the necessity for litigation and an authoritativeinterpretation of Section 23(b) (indeed, implementing legislationmay be more likely to trigger litigation than simply leaving theprovision to stand on its own).

(Exhibit p. 16.)

The staff agrees that in deciding on a course of action, the Commission should

focus on achieving an orderly transition to unification. As Professor Kelso points

out “the combination of circumstances involving appointments, elections,

vacancies and votes to unify are extremely numerous and probably not entirely

foreseeable.” (Exhibit p. 16.)

Nonetheless, the staff believes that providing statutory clarification of the

constitutional provision would be helpful. SCA 4 expressly delegates broad

authority to the Legislature to promote an orderly transition to unification:

The purpose of the amendments to Sections 1, 4, 5, 6, 8, 10, 11,and 16, or this article, and the amendments to Section 16 of ArticleI, approved at the November 5, 1996, general election is to permitthe Legislature to provide for the abolition of the municipal courtsand unify their operations within the superior courts.Notwithstanding Section 8 of Article IV, the implementation of, andorderly transition under, the provisions of the measure adding thissection may include urgency statutes that create or abolish officesor change the salaries, terms, or duties of offices, or grant franchisesor special privileges, or create vested rights or interests, whereotherwise permitted under this Constitution.

There is a strong presumption in favor of the Legislature’s interpretation of an

unclear or ambiguous constitutional provision. Heckendorn v. City of San

Marino, 42 Cal. 3d 481, 488, 723 P.2d 64, 229 Cal. Rptr. 324 (1986); Penner v.

County of Santa Barbara, 37 Cal. App. 4th 1672, 1678, 44 Cal. Rptr. 2d 606 (1995).

In light of that presumption, the Legislature’s interpretation will not be

disregarded unless there is a “plain and unmistakable conflict” between the

statute and the Constitution. Penner, 37 Cal. App. 4th at 1678; Armstrong v.

County of San Mateo, 146 Cal. App. 3d 597, 624, 194 Cal. Rptr. 294 (1983).

Consequently, providing a legislative interpretation of Article VI, Section 23(b)

may deter litigation over its meaning, or at least facilitate prompt resolution of

such litigation.

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The staff therefore suggests the following revision of proposed

Government Code Section 70211:

§ 70211. Conversion of judgeships70211. When the municipal and superior courts in a county are

unified:(a) The judgeships in each municipal court in that county are

abolished and the previously selected municipal court judgesbecome judges of the superior court in that county. Until revised bystatute, the total number of judgeships in the unified superior courtshall equal the previously authorized number of judgeships in themunicipal court and superior court combined.

(b) The term of office of a previously selected municipal courtjudge is not affected by taking office as a judge of the superiorcourt. A previously selected municipal court judge is entitled tohold office for the same time period as if the judge had remained ajudge of the municipal court. Until a previously selected municipalcourt judge leaves office or a successor is elected and qualifies, thetime for election of a successor is governed by the law otherwiseapplicable to selection of a municipal court judge. Thereafter,selection of a successor to the office is governed by the lawgoverning selection of a superior court judge.

(c) The 10-year membership or service requirement of Section 15of Article VI of the California Constitution does not apply to apreviously selected municipal court judge.

Comment. Subdivision (a) of Section 70211 restates the firstthree sentences sentence of Constitution Article VI, Section 23(b),with the addition in subdivision (a) of a provision maintaining thetotal number of judgeships in the county. The Legislatureprescribes the number of judges. Cal. Const. art. VI, §§ 4, 5.

Subdivision (b) restates the second sentence of ConstitutionArticle VI, Section 23(b), and clarifies how that provision applies.For provisions governing the timing of municipal court elections,see Government Code Sections 71141, 71145, 71180.

Subdivision (c) restates the third sentence of ConstitutionArticle VI, Section 23(b).

The references in this section to a “previously selected” judgeincludes selection by election or by appointment to fill a vacancy.Cf. Trial Court Unification: Constitutional Revision (SCA 3), 24 Cal. L.Revision Comm’n Reports 1, 82 (1994) (Article VI, § 23(b)Comment).

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UNIFICATION DURING A MUNICIPAL COURT ELECTION: OPTIONS

The staff also believes that statutory clarification would be helpful on the

interrelationship between unification and an ongoing municipal court election.

Options

What are the alternatives?

(1) Election Proceeds As a Municipal Court Election But Is Deemed a Superior Court

Election. One way of handling the problem would be to allow the ongoing

election to proceed in the same manner as a municipal court election but deem it

a superior court election. In other words, the election would not be canceled, nor

would it be converted to a countywide election if the municipal court district is

less than countywide. The election would simply proceed as originally planned,

but the winner would be elected to the unified superior court, rather than to the

municipal court.

This may be unconstitutional where the municipal court district is less than

countywide. “In counties in which there is no municipal court, judges of superior

courts shall be elected in their counties at general elections except as otherwise

necessary to meet the requirements of federal law.” Cal. Const. art. VI, § 16(b) (as

amended by SCA 4) (emphasis added). In other counties, constitutionality may

not be a problem, but the election may proceed differently than it would if

potential candidates and voters were aware at the outset that they were selecting

a superior court judge.

(2) Election Proceeds and Winner Is Deemed “Previously Selected.” A second

option would be to allow the ongoing election to proceed as originally planned,

but statutorily deem the winner to be “previously selected” for purposes of

Constitution Article VI, Section 23(b) and Government Code Section 70211. A

statute along these lines may be given considerable deference, in light of the

Legislature’s broad authority to promote an orderly transition to unification, as

well as the presumption in favor of the Legislature’s interpretation of an unclear

or ambiguous constitutional provision.

(3) Statutorily Delay the Operative Date of Unification. Another approach would

be to statutorily delay the operative date of unification until after the municipal

court election is completed. In counties where the municipal court district is less

than countywide, however, this could be viewed as an unconstitutional end-run

around the requirement that judges of superior courts shall be elected in their

– 15 –

counties at general elections except as otherwise necessary to meet the

requirements of federal law.” Cal. Const. art. VI, § 16(b) (as amended by SCA 4)

(emphasis added).

If the approach is used, it should not significantly delay unification in 1998.

Only three municipal court elections involve more than two contestants, so

runoffs in November should not be necessary elsewhere. Where an election is

contested, the prevailing candidate is elected on the day of the election and not

on the day that the results are officially declared. Brown v. Hite, 64 Cal. 2d 120,

127, 410 P.2d 373, 48 Cal. Rptr. 869 (1966). Thus, many judges should be elected

as of June 2, 1998, the same day as the vote on SCA 4. If an incumbent is

unopposed and the incumbent’s name does not appear on the ballot at the

primary election, however, the incumbent is not elected until after the deadline

for filing a petition for write-in candidacy in the general election. See Elec. Code §

8203 (Petition for write-in candidacy must be filed “not less than 83 days before

the general election); Brown v. Hite, supra, 64 Cal. 2d at 126-27. That deadline is

in mid-August (83 days before the general election), less than two months after

the vote on SCA 4.

(4) Postpone the Election. Still another approach would be to postpone the

election to the next general election year. This may be unpopular with candidates

in the ongoing election, but when the election does take place candidates and

voters will know the nature of the election upfront and can proceed accordingly.

Choice of Approach

Choosing among these alternatives will have immediate political impact. We

anticipate that interested parties will provide input on the options at or before

the Commission’s meeting. This should help in determining which approach

represents the best policy.

Respectfully submitted,

Barbara S. GaalStaff Counsel

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Study J-1300 May 27, 1998Memo 98-33

Exhibit

TIMING OF JUDICIAL ELECTIONS

I. EXISTING SYSTEM

☞ The following chart shows some of the basic rules that apply to municipal and superiorcourt elections. It does not cover unusual situations, such as a vacancy occurring while an electionis in progress, or election of a judge who fails to qualify.

Inception of Term of Elected Judge

Municipal court approach. “The term of office of judges of municipal andjustice courts is six years from and including the first Monday of January after theJanuary 1st next succeeding their election.” Gov’t Code § 71145.

Superior court approach. “Terms of judges of superior courts are 6 yearsbeginning the Monday after the January 1 following their election.” Cal. Const.art. VI, § 16(c); see also Cal. Const. art. VI, § 20.

Expiration of Term of Elected Judge

Municipal court approach. A municipal court term expires on the first Mondayafter January 1, the same day that the successor takes office. See Caldwell v.Bruning, 64 Cal. 2d 111, 113, 410 P.2d 353, 48 Cal. Rptr. 849 (1966) (“The termof office to which petitioner assertedly was appointed in January 1965 will notexpire until January 1971”); Brown v. Hite, 64 Cal. 2d 120, 123, 410 P.2d 373, 48Cal. Rptr. 869 (1966) (petitioner received two appointments to hold office, one“for the reminder of a term expiring on January 4, 1965, and until his successor iselected and qualifies” and another “purportedly for the remainder of a new six-year term which had commenced on” January 4, 1965); Campbell v. Hite, 57 Cal.2d 484, 485-487, 369 P.2d 944, 20 Cal. Rptr. 328 (1962) (discussing fivemunicipal court terms “ending the first Monday in January 1963”); see also Gov’tCode § 71145.

Superior court approach. Footnotes in several Supreme Court cases state that “asuperior court term is said to expire at the end of the year before which the electedsuccessor is to take office.” Stanton v. Panish, 28 Cal. 3d 107, 111 n.1, 615 P.2d1372, 167 Cal. Rptr. 584 (1980); Pollack v. Hamm, 3 Cal. 3d 264, 273 n.6, 475P.2d 213, 90 Cal. Rptr. 181 (1970); Barber v. Blue, 65 Cal. 2d 185, 187 n.2, 417P.2d 401, 52 Cal. Rptr. 865 (1966). Whether these statements are correct or arespurious dictum is debatable.

EX 1

Election to Determine Successor to Elected Judge Who Serves Entire Term

Municipal court approach. Municipal court judges “shall be elected at thegeneral state election next preceding the expiration of the term for which theincumbent has been elected.” Gov’t Code § 71141.

Superior court approach. Judges of superior courts “shall be elected in theircounties or districts at general elections.” Cal. Const. art. VI, § 16(b); see also CalConst. art. VI, § 16(b) (as amended by SCA 4) (Superior court judges in countieswith no municipal court shall be elected in their counties at general electionsexcept as required by federal law; superior court judges in other counties shall beelected in their counties or districts at general elections). The election of officersprovided for by the Constitution “shall be held in the last even-numbered yearbefore the term expires.” Cal. Const. art. II, § 20; see also Pollack v. Hamm, 3 Cal.3d 264, 273, 475 P.2d 213, 90 Cal. Rptr. 181 (1970) (Constitution “contemplatesthat an opportunity to pass on the qualifications of superior court judges will beavailable to the electorate no less often than every six years”); Stanton v. Panish,28 Cal. 3d 107, 615 P.2d 1372, 167 Cal. Rptr. 584 (1980) (1980 was proper yearfor election to replace judge whose term expired at the end of 1980).

Elected Judge Dies or Resigns in the Middle of the Term

Municipal court approach. “Any vacancy in the office of judge of a municipalcourt shall be filled by appointment by the Governor.” Gov’t Code § 71180.

Superior court approach. “[T]he Governor shall appoint a person to fill thevacancy temporarily.” Cal. Const. art. VI, § 16(c).

Length of Appointment

Municipal court approach. A municipal court appointee holds office “for theremainder of the unexpired term of his or her predecessor and until his or hersuccessor is elected and qualifies.” Gov’t Code § 71180(a).

Superior court approach. A superior court appointee does not serve out theremainder of the predecessor’s six-year term. The appointee only fills the vacancyuntil a successor is elected and “the elected judge’s term begins.” Cal. Const. art.VI, § 16(c).

Election to Determine Successor to Appointee

Municipal court approach. Under Government Code Section 71141, a successoris chosen at the general state election next preceding the expiration of the electedpredecessor’s six-year term.” See Caldwell v. Bruning, 64 Cal. 2d at 116. But theso-called “ten-month rule” applies to a municipal court appointee: “No successorto the appointee shall be elected at any election held within 10 months of the dateof the occurrence of the vacancy.” Gov’t Code § 71180(a); see also Donnellan v.Hite, 139 Cal. App. 2d 43, 293 P.2d 158 (1956); Campbell v. Hite, 57 Cal. 2d 484,369 P.2d 944, 20 Cal. Rptr. 328 (1962); Brailsford v. Blue, 57 Cal. 2d 335, 369P.2d 13, 19 Cal. Rptr. 485 (1962).

EX 2

Superior court approach. A superior court appointee is up for election at the“next general election after the January 1 following the vacancy.” Cal. Const. art.VI, § 16(c); see also Cal. Const. art. VI, § 16(c) (as amended by SCA 4) (“after thesecond January 1 following the vacancy”).

A New Judgeship is Added

Municipal court approach. “If the office to which any person so appointed wasnot previously occupied, he or she shall hold office until his or her successor iselected at the general state election next succeeding the occurrence of the vacancyand qualifies. No successor to the appointee shall be elected at any election heldwithin 10 months of the date of the occurrence of the vacancy.” Gov’t Code §71180.

Superior court approach. Every new office is vacant from the time of itscreation until it is filled by appointment or election. Fields v. Eu, 18 Cal. 3d 322,556 P.2d 729, 134 Cal. Rptr. 367 (1976). The vacancy is to be filled “at the nextgeneral election after the January 1 following the vacancy.” Cal. Const. art. VI, §16(c).

Successive Appointments

Municipal court approach. If a municipal court appointee resigns and is replacedwith a new appointee before the process of electing a successor begins, theresignation of the first appointee retriggers the ten-month rule. The ten months runfrom the date of the first appointee’s resignation, not from the date of the originalvacancy. Morrison v. Michael, 98 Cal. App. 3d 507, 159 Cal. Rptr. 568 (1979).

Superior court approach. If a superior court appointee resigns and is replacedwith a new appointee before the process of electing a successor begins, the nextelection is not postponed. The office is on the ballot at the general election afterthe January 1 following the original vacancy. Pollack v. Hamm, 3 Cal. 3d 264,273, 475 P.2d 213, 90 Cal. Rptr. 181 (1970).

II. IMPACT OF UNIFICATION ON JUDICIAL ELECTIONS

☞ The following chart covers some basic situations involving interrelationship betweenunification and a judicial election. It does not cover unusual situations, such as a vacancyoccurring while an election is in progress or election of a judge who fails to qualify.

Scenario (1). Elected Municipal Court Judge Serves Entire Term, During WhichUnification Occurs

Situation. A judge is elected to the municipal court in 1998 and begins serving asix-year term in January 1999. The court unifies. The judge serves the remainderof the six-year term (i.e., until the first Monday after January 1, 2005). When is anelection held to select a successor? When does the successor take office? Howlong does the former municipal court judge hold office?

EX 3

“Term of office” means “tenure in office” in Constitution Article VI, § 23(b).Suppose the phrase “term of office” in Article VI, Section 23(b) is interpreted tomean that unification does not affect how long a former municipal court judgeholds office; the judge will be up for election at the same time as if unification hadnot occurred. Then a successor to the judge would be chosen “at the general stateelection next preceding the expiration of the term for which the incumbent hasbeen elected.” Gov’t Code § 71141. This means that the successor would beelected in 2004 (the election year next preceding January 2005) and take office inJanuary 2005. The former municipal court judge would serve a total ofapproximately six years, some as a municipal court judge and some as a superiorcourt judge.

“Term of office” means six-year term in Constitution Article VI, § 23(b).Suppose the phrase “term of office” in Article VI, Section 23(b) is interpreted torefer to the previously selected municipal court judge’s six-year term. Then whatrule applies for selecting a successor?

One possibility is to use the rule for determining a successor to an electedsuperior court judge: In a county with no municipal court, a successor shall beelected in the county at the general election preceding expiration of the term,except as required by federal law. Cal. Const. art. VI, § 16(b) (as amended by SCA4); see also Cal. Const. art. II, § 20; Pollack v. Hamm, 3 Cal. 3d 264, 273, 475P.2d 213, 90 Cal. Rptr. 181 (1970); Stanton v. Panish, 28 Cal. 3d 107, 615 P.2d1372, 167 Cal. Rptr. 584 (1980). Under this approach, a successor would beelected in 2004 (the election year next preceding January 2005, when the judge’ssix-year term expires) and take office in January 2005. The former municipal courtjudge would serve a total of approximately six years, some as a municipal courtjudge and some as a superior court judge.

But the judge is not an elected superior court judge serving a superior court term.He or she is an elected municipal court judge filling a newly created superior courtjudgeship until his or her municipal court term expires.

Thus, another possibility is to apply the rule for an election to fill a newlycreated superior court judgeship. Upon expiration of the six-year term, thejudgeship is considered vacant, a newly created office to which no one has beenelected. A successor will be chosen at “the next general election after the secondJanuary 1 following the vacancy.” Cal. Const. art. VI, § 16(c) (as amended bySCA 4); see also Fields v. Eu, 18 Cal. 3d 322, 556 P.2d 729, 134 Cal. Rptr. 367(1976) (vacancy rule applies in holding election to fill new superior courtjudgeship). In the interim, it is debatable whether the former municipal court judgeis entitled to fill the post, or the Governor is entitled to appoint someone else.

Suppose the former municipal court judge remains in office. The first January 1following the vacancy is January 1, 2006; the second January 1 following thevacancy is January 1, 2007. The next general election after January 1, 2007

EX 4

probably will not be until 2008.1 If the former municipal court judge loses thatelection, he or she nonetheless remains in office until the elected successorqualifies in January 2009.

Thus, in this scenario the judge would serve from mid-January 1999 to earlyJanuary 2009 (approximately ten years) without standing election. Depending onwhen unification occurs, during much of this time the judge may be serving as asuperior court judge.

Scenario (2). Elected Municipal Court Judge Resigns After Unification and GovernorAppoints Replacement

Situation. A judge is elected to the municipal court in 1998 and begins serving asix-year term in January 1999. The court unifies. The judge resigns and theGovernor appoints a replacement before the six-year term expires. When is anelection held to select a successor? When does the successor take office? Howlong does the appointee hold office?

“Term of office” means “tenure in office” in Constitution Article VI, § 23(b).Suppose Article VI, Section 23(b) is interpreted to mean that the tenure in office ofa previously selected municipal court judge is unaffected by unification (i.e.,unification does not affect how long a former municipal court judge holds office).So interpreted, the provision would not apply to the appointee in this scenario,because the appointee is not a “previously selected municipal court judge.” Theappointee is an appointee to a superior court judgeship and the rule for superiorcourt appointees applies: The appointee is up for election at the “next generalelection after the second January 1 following the vacancy.” Cal. Const. art. VI, §16(c)(as amended by SCA 4). If the vacancy occurs early in 2004, before theelection process begins,2 then the “next general election after the second January 1following the vacancy” would be in 2006. The gap between elections would beeight years.

The same gap would result if an elected superior court judge resigned near theend of the term (but before the start of the election process) and an appointmentwas made. For instance, suppose a judge is elected to the superior court in 1998and begins serving a six-year term in January 1999. The judge resigns early in2004, before the election process begins, and an appointment is made. Underexisting law, the appointee is up for election at the next general election after thefirst January 1 following the vacancy. This would be the first general election afterJanuary 1, 2005, which probably will not occur until 2006.3 The gap between

1. See Elec. Code §§ 324, 356, 357, 1000, 1001, 1003, 1200, 1201, 1202. Under these statutes, generalelections occur in even-numbered years, unless the Governor calls a special statewide election to be held ona regular election date in an odd-numbered year.

2. If an elected superior court judge resigns after another candidate has filed nominating papers, theelection will not be canceled. Stanton v. Panish, 28 Cal. 3d 107, 615 P.2d 1372, 167 Cal. Rptr. 584 (1980).If the incumbent was the only candidate, a successor will be chosen at the “next general election after thesecond January 1 following the vacancy.”

3. See note 1, supra.

EX 5

elections would be eight years. The result is the same under SCA 4: The “nextgeneral election after the second January 1 following the vacancy” would be in2006.

“Term of office” means six-year term in Constitution Article VI, § 23(b).Suppose the phrase “term of office” in Article VI, Section 23(b) is interpreted torefer to the previously selected municipal court judge’s six-year term (i.e., the six-year term “of a previously selected municipal court judge is not affected by takingoffice as a judge of the superior court”). Then this scenario presents a difficultquestion: Is the six-year term preserved only if it is served by the “previouslyselected municipal court judge,” or also if an appointee replaces a “previouslyselected municipal court judge”?

The former interpretation draws support from the context of Section 23(b): It canbe viewed as a transitional provision governing what happens to sitting municipalcourt judges upon unification, irrelevant to persons having no connection to themunicipal court. Under this interpretation, the appointee would not serve out thesix-year term of the former municipal court judge. Instead, the appointee would beup for election at the “next general election after the second January 1 followingthe vacancy.” Cal. Const. art. VI, § 16(c)(as amended by SCA 4).

The latter interpretation (i.e., the six-year term is preserved notwithstanding thedeparture of the former municipal court judge) is also plausible. See Caldwell v.Bruning, 64 Cal. 2d 111, 117, 410 P.2d 353, 48 Cal. Rptr. 849 (1966) (a municipalcourt term “relates to the office and not to the tenure of the person who has beenelected, which might terminate prior to the expiration of this period.”). Under thisinterpretation, the appointee would serve the remainder of the six-year term (i.e.,until the first Monday after January 1, 2005). As of that date, the office would bevacant and a further question would arise: Is the appointee entitled to remain inoffice until a successor is elected at the next general election after the secondJanuary 1 following the vacancy? May the Governor appoint another person toserve during that period instead? Regardless of how this issue is resolved, therewould be a ten year gap between elections, from 1998 to 2008 (barring a specialelection in 2007).

Scenario (3). Municipal Court Judge Is Appointed Early in Term, Then Courts Unify

Situation. A judge is elected to the municipal court in 1998 and begins serving asix-year term in January 1999. The judge takes office, but resigns a few days laterand is replaced by an appointee the same month. The municipal and superiorcourts later unify. When is an election held to select a successor? When does thesuccessor take office? How long does the appointee hold office?

“Term of office” means “tenure in office” in Constitution Article VI, § 23(b).Suppose Article VI, Section 23(b) is interpreted to mean that the tenure in office ofa previously selected municipal court judge is unaffected by unification (i.e.,unification does not affect how long a former municipal court judge holds office).Then the appointee would serve the remainder of the elected judge’s six-year term

EX 6

(until the first Monday after January 1, 2005). Under Government Code Section71141, a successor is chosen “at the general state election next preceding theexpiration of the term ….” See Caldwell v. Bruning, 64 Cal. 2d 111, 116, 410 P.2d353, 48 Cal. Rptr. 849 (1966). In other words, the successor would be elected in2004 (the election year next preceding January 2005) and take office in January2005. The appointee would serve approximately six years, some as a municipalcourt judge and some as a superior court judge.

“Term of office” means six-year term in Constitution Article VI, § 23(b).Suppose the phrase “term of office” in Article VI, Section 23(b) is interpreted torefer to the previously selected municipal court judge’s six-year term (i.e., the six-year term “of a previously selected municipal court judge is not affected by takingoffice as a judge of the superior court”). Then the appointee (now a superior courtjudge) would serve the remainder of the elected judge’s six-year term, i.e., untilthe first Monday after January 1, 2005. As of that date, the office would be vacantand a further question would arise: Is the appointee entitled to remain in officeuntil a successor is elected at the next general election after the second January 1following the vacancy? May the Governor appoint another person to serve duringthat period instead? Regardless of how this issue is resolved, there would be a tenyear gap between elections, from 1998 to 2008 (barring a special election in 2007).

Scenario (4). Municipal Court Judge is Appointed Late in Term, Then Courts Unify

Situation. A judge is elected to the municipal court in 1998 and begins serving asix-year term in January 1999. The judge resigns late in 2003 or early in 2004,before the election process begins.4 An appointment is made right away. The courtunifies. When is an election held to select a successor? When does the successortake office? How long does the appointee hold office?

“Term of office” means “tenure in office” in Constitution Article VI, § 23(b).The appointee holds office for the remainder of the fixed term (until the firstMonday after January 1, 2005) and until a successor is elected and qualifies. Gov’tCode § 71180. “[N]o successor to the appointee shall be elected at any electionheld within 10 months of the date of occurrence of the vacancy.” Id. Thus, asuccessor would be chosen in 2006 (barring a special election in 2005). SeeCampbell v. Hite, 57 Cal. 2d 484, 369 P.2d 944, 20 Cal. Rptr. 328 (1962). The gapbetween elections would be eight years (from 1998 to 2006).

4. If a municipal court judge resigns after the last day for filing nominating papers, and a candidateother than the incumbent has filed nominating papers, the election goes forward that year. Depending onthe time of the resignation, the primary may be canceled and a plurality of the vote may be sufficient to winthe general election. See Gov’t Code § 71180(b); Cathey v. Weissburd, 202 Cal. App. 3d 982, 249 Cal.Rptr. 204 (1988).

If an incumbent is unopposed at the time of resignation and an appointment is made, the election willbe postponed until the next election year, pursuant to the ten-month rule. Gov’t Code § 71180(a); Brown v.Hite, 64 Cal. 2d 120, 127-28, 410 P.2d 373, 48 Cal. Rptr. 869 (1966). This creates an eight year gapbetween elections.

For discussion of the impact of unification during the election process, see Memorandum 98-33,pages 6, 15-16.

EX 7

“Term of office” means six-year term in Constitution Article VI, § 23(b). Theappointee holds office for the remainder of the fixed term (until the first Mondayafter January 1, 2005). Then the office would be vacant. Is the appointee entitledto remain in office until a successor is elected at the next general election after thesecond January 1 following the vacancy? May the Governor appoint anotherperson to serve during that period instead? Regardless of how this issue isresolved, there would be a ten year gap between elections, from 1998 to 2008(barring a special election in 2007).

Scenario (5). Municipal Court Judge is Appointed, Then Courts Unify, Appointee Resigns,and Governor Makes New Appointment

Situation. A judge is elected to the municipal court in 1998 and begins serving asix-year term in January 1999. The judge takes office, but resigns a few days laterand is replaced by an appointee the same month. The municipal and superiorcourts later unify. Thereafter, the appointee resigns and the Governor makes a newappointment. When is an election held to select a successor to the secondappointee? When does the successor take office? How long does the secondappointee hold office?

“Term of office” means “tenure in office” in Constitution Article VI, § 23(b).Suppose Article VI, Section 23(b) is interpreted to mean that the tenure in office ofa previously selected municipal court judge is unaffected by unification (i.e.,unification does not affect how long a former municipal court judge holds office).So interpreted, the provision would not apply to the second appointee in thisscenario, because the second appointee is not a “previously selected municipalcourt judge.” The second appointee is an appointee to a superior court judgeshipand the rule for superior court appointees applies: The appointee is up for electionat the “next general election after the second January 1 following the vacancy.”(Cal. Const. art. VI, § 16(c)(as amended by SCA 4).

The date of the vacancy would be the date of the first appointee’s resignation.The earlier vacancy was not a superior court vacancy, so the rule governingsuccessive superior court vacancies would not apply. See Pollack v. Hamm, 3 Cal.3d 264, 273, 475 P.2d 213, 90 Cal. Rptr. 181 (1970) (If a superior court appointeeresigns and is replaced with a new appointee before the process of electing asuccessor begins, the office is on the ballot at the general election after the January1 following the original vacancy).

“Term of office” means six-year term in Constitution Article VI, § 23(b).Suppose the phrase “term of office” in Article VI, Section 23(b) is interpreted torefer to the previously selected municipal court judge’s six-year term (i.e., the six-year term “of a previously selected municipal court judge is not affected by takingoffice as a judge of the superior court”). Then this scenario presents the samedifficult question as in Scenario (2): Is the six-year term preserved only if it isserved by the “previously selected municipal court judge,” or also if an appointeereplaces a “previously selected municipal court judge”?

EX 8

Under the former interpretation, the appointee would not serve out the six-yearterm of the former municipal court judge. Instead, the appointee would be up forelection at the “next general election after the second January 1 following thevacancy.” Cal. Const. art. VI, § 16(c)(as amended by SCA 4). The date of thevacancy would be the date of the first appointee’s resignation.

Under the latter interpretation (i.e., the six-year term is preservednotwithstanding the departure of the former municipal court judge) the secondappointee would serve the remainder of the six-year term (i.e., until the firstMonday after January 1, 2005). As of that date, the office would be vacant and afurther question would arise: Is the appointee entitled to remain in office until asuccessor is elected at the next general election after the second January 1following that vacancy? May the Governor appoint another person to serve duringthat period instead? Regardless of how this issue is resolved, there would be a tenyear gap between elections, from 1998 to 2008 (barring a special election in 2007).

EX 9